Whether exemption from rent law is in respect of premises or with respect to parties?

It is well settled by a decision of this Court in Bhatia Cooperative Housing Society Ltd. v. D.C. Patel MANU/SC/0064/1952 : [1953]4SCR185 wherein pari materia provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration of this Court. It was held that the exemption is not conferred on the relationship of landlord and tenant but on the premises itself making it immune from the operation of the Act. In identical facts, as the present case is, the decision of this Court was followed by the High Court of Madhya Pradesh in Radhevlal Somsingh v. Ratansingh Kishansingh MANU/MP/0095/1977 : 1977 MPLJ 335 and it was held that the immunity from operation of the Madhya Pradesh Accommodation Control Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempt under Section 3(1) (b) of Act though the suit is not between the municipality as landlord and against its tenant. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylal's case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2704 of 2000

Decided On: 01.05.2003

 Parwati Bai Vs.  Radhika

Hon'ble Judges/Coram:

R.C. Lahoti and B.N. Agrawal, JJ.

Citation: AIR 2003 SC 3995,(2003) 12 SCC 551

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Whether limitation for filing application U/S 34 of Arbitration Act will commence even if copy of arbitral award is not served on some of parties personally?

 Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition Under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No. 202 of 2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application Under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other Appellant Nos. 1(a) to 1(d) and Respondent No. 10 and they cannot plead non-compliance of Section 31(5) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3313 of 2018 

Decided On: 27.03.2018

Anilkumar Jinabhai Patel Vs.  Pravinchandra Jinabhai Patel and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and R. Banumathi, JJ.

Citation: (2018) 15 SCC 178

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Whether court can refer dispute to lok Adalat and for mediation without consent of parties?

 If the parties are not agreeable for either arbitration or conciliation, both of which require consent of all parties, the court has to consider which of the other three ADR processes (Lok Adalat, Mediation and Judicial Settlement) which do not require the consent of parties for reference, is suitable and appropriate and refer the parties to such ADR process. If mediation process is not available (for want of a mediation centre or qualified mediators), necessarily the court will have to choose between reference to Lok Adalat or judicial settlement. If facility of mediation is available, then the choice becomes wider. It the suit is complicated or lengthy, mediation will be the recognized choice. If the suit is not complicated and the disputes are easily sortable or could be settled by applying clear cut legal principles, Lok Adalat will be the preferred choice. If the court feels that a suggestion or guidance by a Judge would be appropriate, it can refer it to another Judge for dispute resolution. The court has to use its discretion in choosing the ADR process judiciously, keeping in view the nature of disputes, interests of parties and expedition in dispute resolution.


IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6000 of 2010 (Arising out of SLP (C) No. 760 of 2007)

Decided On: 26.07.2010

Afcons Infrastructure Ltd. Vs.  Cherian Varkey Construction Co. (P) Ltd. and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Citation: ( 2010 ) 8 SCC 24

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Basic principles to be followed by court while imposing costs on parties

The English civil procedure rules provide that a court in deciding what order, if any, to make in exercising its discretion about costs should have regard to the following circumstances: (a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment made into court or admissible offer to settle made by a party which is drawn to the courts attention. `Conduct of the parties' that should be taken note by the court includes : (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim. Similar provisions, with appropriate modifications may enable proper and more realistic costs being awarded. As Section 35 of the Code does not impose any ceiling the desired object can be achieved by the following : (i) courts levying costs, following the result, in all cases (non-levy of costs should be supported by reasons); and (ii) appropriate amendment to Civil Rules of Practice relating to taxation of costs, to make it more realistic in commercial litigation.

Supreme Court of India

Vinod Seth vs Devinder Bajaj & Anr on 5 July, 2010

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Whether a person who is not party to suit can file appeal?

The Apex Court in Adi. Pherozshah Gandhi vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, MANU/SC/0044/1970 : A.I.R. 1971 SC 385 held thus:-

"Generally speaking, a person can be said be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Code of procedure."

IN THE HIGH COURT OF ORISSA

C.M.P. No. 1481 of 2014

Decided On: 15.03.2017

Srikanta Tripathy Vs. Dasarathi Tripathy and Ors.

Hon'ble Judges/Coram:

Dr. Akshaya Kumar Rath, J.

Citation: AIR 2017(NOC)617 Orissa

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Whether legal representative of deceased who was not party to proceeding will be bound by decree?

The petitioner's case has already been stated above. Now, when a decree is passed in any suit, it is not only the parties to the suit who are bound by it, but in certain circumstances certain other persons who are not parties to the suit are also bound it. The learned Civil Judge Junior Division has held on facts that the present petitioner, though not brought on record as a defendant in the suit, was bound by the decree passed in the suit. The learned Civil Judge has given sound reasons in paragraphs 5, 6 and 10 of his judgment. He has also quite rightly relied upon the decision in MANU/SC/0008/1974 : [1975]2SCR932 Harihar Prasad Singh v. Balmiki Prasad Singh. He has reproduced certain observations from MANU/SC/0008/1974 : [1975]2SCR932 and he has rightly concluded that the present case fell to be governed by those observations. It is enough to point out that the suit was filed against the present petitioner's father as far back as in 1971. The petitioner's father died in 1974. The petitioner claims to be running her father's business of shop/go down which is in question. The suit was in respect of that very same shop/go down. The plaintiff's mother, brothers and sister were already brought on record in the suit. All these circumstance indicate that the petitioner was quite aware of the proceedings. If she felt that her interests were not properly represented by her mother, brother and sister who had been brought on record as defendants in the suit then she would have approached the Court to be made a party to that suit. It is in these circumstances that the learned Civil Judge rightly concluded that the petitioner considered that her interests were properly looked after by her mother, brothers and sister who were brought on record as defendants in the suit. The learned Civil Judge therefore rightly concluded that although the petitioner had not been brought on record as defendant in the suit, she was as much bound by the decree passed in the suit as those who had already been brought on record in the suit. No interference is called for in the impugned orders and hence this Writ Petition is dismissed with costs.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4266 of 1984

Decided On: 08.01.1992

Chhaya Vishnu Sadavarte (Smt.) Vs. Indubai alias Indumati Bhaskar Bhavsar (Smt.) and Ors.

Hon'ble Judges/Coram:
A.A. Cazi, J.
Citation:1993 MHLJ 613

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Whether parties have right to determine fees of arbitrator?

11. The amended Section 31(8) has done away with the expression “Unless otherwise agreed by the parties…….” and reads as under:—

“(8) The costs of an arbitration shall be fixed by the arbitral tribunal in accordance with section 31A.”

12. Section 31(8) of the Act does not stipulate that the agreement of the parties shall have an overriding effect. The effect of the amendment and specific deletion of the expression “Unless otherwise agreed by the parties…..” shows that the legislative intent that the power of the parties to enter into an agreement with regard to fixing of the fees has been specifically taken away.

13. The regime as contemplated by Section 31(8) read with Section 31(A) of the Act now holds the field.

14. Section 11(14) of the Act empowers the High Court to frame rules for determination of fee of the arbitral tribunal and refers to as a guidance to the rates specified in Schedule IV of the Act. The explanation to Section 11(14) carves out an exception with regard to international commercial arbitration and arbitrations (other than international commercial arbitrations) where parties have agreed for determination of fees as per the rules of an arbitration institution.

15. The above clearly shows that the right of the parties to enter into an agreement with regard to determination of fee for the arbitral tribunal has been restricted to international commercial arbitrations and arbitrations (other than international commercial arbitrations) where parties have agreed for determination of fees as per the rules of an arbitration institution.

16. Thus the contention of learned senior counsel for the petitioner, that the petitioner's nominee arbitrator has consented to the fee schedule stipulated by the Policy Circular is also of no consequence.

In the High Court of Delhi at New Delhi

(Before Sanjeev Sachdeva, J.)

National Highways Authority of India v. Gayatri Jhansi Roadways Limited .

ARB.A. 1/2017 and I.A. Nos. 8086/2017 (stay) & 9441/2017 (for waiver of cost)

Decided on September 11, 2017

Citation:2017 SCC OnLine Del 10285

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Whether parties or arbitrator can rely on documents having genesis in conciliation proceeding?

 Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 read thus:

“75. Confidentiality.— Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.

81. Admissibility of evidence in other proceedings.— The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings,—

(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;

(b) admissions made by the other party in the course of the conciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.”

6. On a reading of Section 75, it is clear that the object of the section is sub-served by the expression “relating to” which is an expression of extremely wide import. (See: Renusagar Power Company Limited v. General Electric Company, (1984) 4 SCC 679 at 704). It is clear, therefore, that both the conciliator and the parties must keep as confidential all matters relating to conciliation proceedings.

7. The litmus test for determining whether the matter relates to conciliation proceedings was laid down by an earlier judgment of this Court. In Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar, [1952] S.C.R. 501, the question to be decided was as to whether a dispute or difference arose out of a certain insurance policy. This Court laid down that the test for determining whether a dispute or difference arose out of the said policy is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If it is found that such recourse is necessary, then the matter would certainly fall within the policy. Following this judgment, and applying it to the facts of this case, it is clear that recourse needs to be had to conciliation proceedings as the genesis of this demarcation report is only in conciliation proceedings and not otherwise.

8. This being the case, it is of no matter that the present case does not fall within the four pigeon holes contained in Section 81, as otherwise, if there are insidious encroachments on confidentiality, a free and fair settlement may never be arrived at, thus stultifying the object sought to be achieved by Part III of the 1996 Act.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(Before R.F. Nariman and Sanjay Kishan Kaul, JJ.)

Govind Prasad Sharma & Ors. v. Doon Valley Officers Cooperative Housing Society Ltd. 

Civil Appeal No. 10786 of 2017

(Arising out of S.L.P.(C) No. 9888 of 2015)

Decided on August 23, 2017

Citation:2017 SCC OnLine SC 1001,(2018) 11 SCC 501.

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Whether arbitration agreement not signed by parties is valid?

Learned counsel for the respondent – plaintiff
further   submitted   that   in   view   of   Section   7   of   the
Arbitration and Conciliation Act, 1996, unless and until
the   written   document   is   signed   by   both   the   sides,
arbitration agreement cannot come into existence.   This
proposition is not at all acceptable.   The provision of
Section 7 of the Arbitration and Conciliation Act, 1996,
is as under:­
   “7. Arbitration agreement ­ 
(1) In this Part, "arbitration agreement" means
an   agreement   by   the   parties   to   submit   to
arbitration all or certain disputes which have
arisen   or   which   may   arise   between   them   in
respect   of   a   defined   legal   relationship,
whether contractual or not.
(2) An arbitration agreement may be in the form
of   an   arbitration   clause   in   a   contract   or   in
the form of a separate agreement.
(3)   An   arbitration   agreement   shall   be   in

writing.
(4) An   arbitration   agreement   is   in   writing   if
it is contained in­
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or
other means of telecommunication which provide
a record of the agreement; or
(c)   an   exchange   of   statements   of   claim   and
defence in which the existence of the agreement
is alleged by one party and not denied by the
other.
(5) The reference in a contract to a document
containing an arbitration clause constitutes an
arbitration   agreement   if   the   contract   is   in
writing   and   the   reference   is   such   as   to   make
that arbitration clause part of the contract.”
11] Section   7(1)   of   the   Act   gives   the   meaning   of
arbitration agreement.  In Section 7(2), it is mentioned
that arbitration agreement may be in the form of a clause
in the contract itself or it may be in a separate form or
a separate agreement. Section 7(3) shows that arbitration
agreement needs to be in writing.  Thus, it can be said
that in Section 7(3), it is made clear that arbitration
agreement should be in writing but this sub­section does
not show that unless and until it is signed by both the
sides,   the   agreement   will   not   come   into   existence.

Section   7(4)   gives   the   meaning   of   written   agreement.
Sub­section 4(a) shows that it can be inferred that it is
an   written   agreement   if   a   document   is   signed   by   the
parties.   Sub­section 4(b) shows that written agreement
can   come   into   existence   by   exchange   of   letter,   telex,
telegrams   or   other   means   of   telecommunication   which
provide   a   record   of   the   agreement.     Sub­section   4(c)
shows that arbitration agreement can come into existence
by   exchange   of   statements   of   claim   and   defence   also.
Thus,   when   the   purchase   order   is   placed,   as   in   the
present   case,   the   matter   will   fall   u/s   7(4)(b).     This
sub­section   does   not   show   that   there   needs   to   be
signature of other party.  In the present matter, written
order like purchase order was given by the defendant to
the plaintiff and the order provided that it was upto the
plaintiff   either   to   accept   or   not   to   accept   this
proposal.  As the supply was made by the plaintiff as per
this order and there is specific admission in that regard
in   the   plaint,   it   needs   to   be   presumed   that   the   offer
given by the defendant was accepted by the plaintiff and
this acceptance was for all the terms and conditions of
the contract.  It is already observed that the terms and

conditions of the contract can be found in the purchase
order and in Annexure 'A'.
12] The   aforesaid   position   of   law   and   facts   and
circumstances of present case show that the trial Court
has committed  error in  observing  that  signature of  the
plaintiff was necessary on this document and as signature
is not there, there was no agreement to refer the dispute
to arbitrator.  This objection was taken prior to filing
of   written   statement   as   provided   in   Section   8   of   the
Arbitration and Conciliation Act, 1996 by the defendant.
In view of these circumstances, it is necessary for the
parties   to   refer   the   dispute   to   Arbitral   Tribunal   as
provided in the aforesaid clauses of the contract.  It is
not possible for Civil Court to directly refer the matter
to   arbitrator   as   the   procedure   as   laid   down   in   the
aforesaid clauses need to be followed by the parties to
the contract.   Thus, there is no other alternative than
to   return   the   plaint   for   referring   the   matter   to
arbitrator.  
                     
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD      
              
      CIVIL REVISION APPLICATION NO.134/2015
Indus Towers Limited,

                         V
Sow.Ashatai w/o Bapurao Kagne,

CORAM: T.V. NALAWADE, J.
  
DATE:  18.11.2015
Citation: 2016(6) ALLMR 877

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Whether it is necessary to make other defendant party in appeal if appeal is filed by one defendant?

 Moreover, I am of the considered view that the appeal as filed
is not properly constituted. As pointed out the suit was filed by the
three plaintiffs against four defendants. After dismissal of the suit
the three plaintiffs filed an appeal against the four defendants. That
appeal by the plaintiffs was allowed and a decree had been passed
against all the defendants. Even if some of the defendants may not
challenge the decree, in case any one of the defendants challenge
the decree then all the parties to the suit should have been made
parties in the appeal.
 In Tripura, sub-rule 3 to Order XLI Rule 14 C.P.C. as amended
and applicable to Gauhati High Court is applicable and this provides
that the Appellate Court may make an order dispensing with the
service of such notice on any respondent who did not appear either
at the hearing in the court whose decree is complained of or in any
proceedings subsequent to the decree provided further that the
Court may require a notice of the appeal to be published in any
newspaper. This does not mean that all the parties should not be

made respondents. There is a decree against defendants 2 to 4,
namely Shri. Dilip Kumar Deb, Shri. Manik Lal Das and Murari
Mohan Das. This decree if it has to be set aside must be set aside
in favour of all the defendants and this cannot be done without
them being made parties.
THE HIGH COURT OF TRIPURA
A G A R T A L A
RSA NO. 10 OF 2006

Smt. Gita Deb, Vs  Smt. Gauri Das,

BEFORE
CHIEF JUSTICE MR. DEEPAK GUPTA

Delivery of judgment
and order : 21.07.2015
Citation; AIR 2015 (NOC)1189 TRIPURA

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Whether Due diligence prescribed for amendment of plaint is of parties or of Advocate on record?

Civil procedure code O 6 R 17 proviso -amendment of pleadings -due diligence-Due diligence prescribed by the proviso is of parties and of nobody else including Advocate on record.
 A party can of course say he being not a legal expert would not know immediately that decision of his Advocate is not sound and so he would not be in a position to promptly exercise his choice of Advocates and would be able to do so only after passage of sometime when he would learn or be told about the incorrectness of approach of his Advocate. Even this justification in my opinion cannot answer the test of due diligence. The reason being that a representative or Advocate and the party being represented in a case are not two separate identities in that case so far as conduct of the case is concerned. Whatever an Advocate does on behalf of the client is considered to be done by the party himself. The acts of the Advocate before the Court are binding upon the party he represents and what he submits before the Court on facts is only what the party says and what he says in law is with the approval express or assumed of the party. In other words all actions taken before the Court by an Advocate are the actions of the party. So there is no splitting of concept of due diligence one of the party and the other of the Advocate so as to enable the party to be excused for negligence of the Advocate just by showing his own diligence. If such a ground is to be taken as a good ground it may provide an effective tool to the lazy and indolent parties to conveniently get over the rigour of due diligence test prescribed under the proviso to Rule 17 Order 6 CPC. All that he would have to do is change the Advocate blaming it on the previous Advocate.
BOMBAY HIGH COURT
Conception fernandes v tasneem shaikh 
Coram;Shri S B SHUKRE J
W P NO.625/2013 Decided on 11-4 -2014(panji-Goa
Citation: 2014(5) MHLJ494

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When arbitration clause is not binding on partners?

The High Court by its judgment and order dated 18.9.2001 rejected application under Section 8 of the Act. The Court arrived at the conclusion that in the suit apart from the relief of dissolution and accounts, plaintiff has prayed for other reliefs. All the defendants to the suit are not parties or partners in the partnership firm and the terms of the partnership deed including the arbitration clause are not binding to them. Only part of the subject matter could at the most be referred to the arbitration. Further, there is no power conferred on the Court to add parties who are not parties to the agreement in the arbitration proceedings. The Court also negatived the alternative prayer for referring part of the subject matter in respect of those parties who are parties to the partnership agreement which contains arbitral clause. The Court arrived at the conclusion that such procedure is not contemplated under the Act. The object and purpose of the Act is to avoid multiplicity of the proceedings and not to allow two forums simultaneously to proceed with the matter. That judgment and order is challenged in this appeal.

Supreme Court of India

Sukanya Holdings Pvt. Ltd vs Jayesh H. Pandya & Anr on 14 April, 2003

Bench: M.B. Shah, Arun Kumar.

Citation: AIR2003SC2252, 2003(3)ALD75(SC), 2003(3)ALLMR(SC)325, 2003(2)ARBLR43(SC), 2003 3 AWC(Supp)2055SC, 2003(3)BLJR1673, (2003)3CompLJ68(SC), 2003(2)CTC431, JT2003(4)SC58, 2003-4-LW475, 2003(4)SCALE7, (2003)5SCC531, [2003]44SCL146(SC), [2003]3SCR558,

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